DATE: Saturday, July 26, 1997               TAG: 9707260463

SECTION: LOCAL                   PAGE: B1   EDITION: FINAL 

SOURCE: BY SCOTT HARPER, STAFF WRITER 

DATELINE: NORFOLK                           LENGTH:   89 lines

EPA URGES $20 MILLION FINE AGAINST MEATPACKER SMITHFIELD FOODS: FINE SHOULD NOT EXCEED $250,000.

The pollution trial of Smithfield Foods Inc. closed Friday with the federal government urging that the East Coast's largest pork processor be fined at least $20 million for nearly 7,000 environmental violations since 1991.

``This company must be penalized to get its attention,'' said government attorney Sarah Himmelhoch, who headed the U.S. Environmental Protection Agency's case accusing Smithfield Foods of polluting the Pagan River with slaughterhouse wastes and falsifying and destroying government records.

Patrick Raher, an attorney for the meatpacking giant, argued in an hourlong closing statement that the company should be fined $250,000 for just eight of the violations alleged in the government's civil lawsuit.

Raher accused the government of ``piling on'' charges, and described Smithfield Foods as a responsible corporate citizen with ``a very, very good record of compliance.''

U.S. District Judge Rebecca Beach Smith, who spent much of the five-day trial quizzing lawyers and witnesses for Smithfield Foods, said she would deliver a ruling ``in a week to 10 days.''

In a ruling earlier this summer that all but decided the trial before it began, Smith found that the $4 billion conglomerate can be liable for thousands of pollution violations considered lawful under a state agreement.

Smith called that 1991 agreement woefully lax, and said it indicated how weak Virginia had become inenforcing laws meant to ensure clean water, air and soil across the commonwealth - a claim long echoed by environmental groups.

She also said the accord exposed the Pagan River, a small Chesapeake Bay tributary, to excessive loads of contaminants from company slaughterhouses in Isle of Wight County. Most notable of those was phosphorus, a nutrient known to damage water quality, and one that governors across the mid-Atlantic had pledged to reduce to help revive an ailing Chesapeake Bay.

That ruling, more than her expected penalty in the case, will likely be the subject of an appeal by Smithfield Foods, which has a history of fighting environmental complaints to higher courts. In 1985, for example, the Norfolk-based meatpacker pressed a similar pollution case, brought by the Chesapeake Bay Foundation, to the U.S. Supreme Court.

Under a strict reading of the national Clean Water Act, Smithfield Foods this time faced as much as $174 million in fines for 6,982 violations of environmental laws.

But in her closing statement, Himmelhoch said the government expected a fine of around $20 million. She recalled testimony from a financial analyst, Robert Harris, who said Smithfield gained a $4.2 million economic benefit by not complying with environmental rules in a timely fashion.

She then added the severity of the violations with ecological impacts to the Pagan River and the company's troubled history to come up with a final total of $20 million.

The trial concluded without the testimony of Terry Lynn Rettig, a former wastewater director at Smithfield Foods now serving a 30-month prison term for destroying and falsifying environmental records.

Before his sentencing in January, Rettig claimed that his criminal deeds were condoned, and even encouraged, by company managers who only wanted to keep state regulators off their backs. Lying on state reports, Rettig has charged, was one way to do so.

The company has denied his allegations, calling Rettig a rogue employee who got caught cutting corners.

Smithfield Foods still faces more legal action. The state has refiled its civil lawsuit alleging more than 22,000 permit violations since 1986. None of those allegations are for phosphorus pollution, which composed 80 percent of the federal case against the meatpacker.

A trial date is pending.

The state stayed away from phosphorus because of its own 1991 agreement with Smithfield Foods. Under the terms, Virginia allowed unlimited phosphorus discharges in exchange for a promise that the company would pipe its hog wastes to a public sewage plant once space was available.

That connection is expected to be completed later this summer, and was consistently used throughout the trial this week in federal court as evidence that Smithfield Foods acted in ``good faith'' in trying to comply with environmental laws.

Instead of discharging into the Pagan, as it had for more than 50 years, Smithfield Foods would end that practice and let a more sophisticated sewage facility handle its wastes, company lawyers argued.

But government lawyers attacked that argument as shallow, noting how the meatpacker delayed fixing its waste plants for other problems, that the plants were understaffed, ill-equipped and mismanaged, and that the company acted to diminish pollution only when pushed to the wall by state regulators.

``They cannot disguise a long pattern of violations for just about every parameter they had,'' Himmelhoch said in her closing statement.

``The goal of the Clean Water Act is to, bit by bit, clean up the waters of the United States,'' she continued, ``. . . and you do that by controlling one source at a time. And the defendants can't say that they haven't contributed to the detriment of the Pagan River, the James River and the Chesapeake Bay.'' KEYWORDS: SMITHFIELD FOODS TRIAL POLLUTION EPA

Send Suggestions or Comments to webmaster@scholar.lib.vt.edu